Unit 3 Constitutional Law
Constitutional law is the law that governs the very framework of society. It aims to answer the questions of what laws and freedoms apply to all individuals and how those freedoms should be applied. Constitutional law and those who practice it have a profound impact on society.
Written Constitution
Written constitution is one which is found in one or more than one legal documents duly enacted in the form of laws. It is precise, definite and systematic. It is the result of the conscious and deliberate efforts of the people. It is framed by a representative body duly elected by the people at a particular period in history.
A written constitution is generally rigid and a procedure separate from that of enacting ordinary law is provided for its amendment or revision. In other words a distinction between constitutional law and ordinary law is maintained. The first is regarded as superior to the second. A written constitution may also be termed as an enacted constitution.
Modern written constitutions owe their origin to the charters of liberty granted by the kings in Middle Ages. But the first written constitution framed by a representative constituent assembly was that of the United States of America. This example was followed by France. During the 19th century a number of states framed their constitutions, all of which were written, with the exception of the constitution of England.
Unwritten Constitution
An unwritten constitution is one in which most of the principles of the government have never been enacted in the form of laws. It consists of customs, conventions, traditions, and some written laws bearing different dates. It is unsystematic, indefinite and unprecise.Such a constitution is not the result of conscious and deliberate efforts of the people.
It is generally the result of historical development. It is never made by a representative constituent assembly at a definite stage of history, nor is it promulgated on a particular date. It is, therefore, sometimes called an evolved or cumulative constitution. The constitution of England is a classic example of an unwritten constitution. It is mainly the result of historical growth.
Britain's Unwritten Constitution
The Constitution of England is typical example of an unwritten constitution. For most people, especially abroad, the United Kingdom does not have a constitution at all in the sense most commonly used around the world—a document of fundamental importance setting out the structure of government and its relationship with its citizens.
However, in Britain it is certain that they have a constitution, but it is one that exists in an abstract sense, comprising a host of diverse laws, practices and conventions that have evolved over a long period of time. The British constitution primarily draws from four sources:statute law, common law, parliamentary conventions, and works of authority. The major part of the constitution relating to the powers of the Monarch, the Cabinet, the Parliament and mutual relations between the various organs of the Government are all the result of Conventions.
The foundation of the English Constitution was laid in the 13th century by King John, who issued the first charter of British freedom known as the Magna Carta. Since then it has been in the process of making through conventions and usages.
Although the major portion of the Constitution of England is based on conventions and traditions yet there are many written laws in it like the Magna Carta 1215, the Petition ofRights 1628, the Bill ofRights 1689, the Habeas Corpus Act 1679, the Acts ofSettlement 1701, various Reforms Act of1832,1867,1884, Parliamentary Act of 1911, and the Crown Proceedings Act,1947, etc.
There are a number of associated characteristics of Britain's unwritten constitution, a cardinal one being that in law Parliament is sovereign in the sense of being the supreme legislative body. Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts ofParliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them invalid for being contrary to the constitution and unconstitutional'. So, too, there are no entrenched procedures（such as a special power of the House of Lords, or the requirement of a referendum）by which the unwritten constitution may be amended. The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act ofParliament, however trivial its subject matter.
Another characteristic of the unwritten constitution is the special significance of political customs known as“conventions”, which oil the wheels of the relationship between the ancient institutions of state. These are unwritten rules of constitutional practice, vital to their politics, the workings of government, but not committed into law or any written form at all. The very existence of the office of Prime Minister, their head of government, is purely conventional. So is the rule upon which he or she is appointed, being whoever commands the confidence of the House of Commons（the majority party leader, or head of a coalition of parties）.
The Monarchy is one of the three components of Parliament（shorthand for the Queen-in-Parliament）along with Commons and Lords. In legal theory, the Queen has absolute and judicially unchallengeable power to refuse her assent to a Bill passed by the two Houses of Parliament. However, convention dictates the precise opposite and in practice she automatically gives her assent to any government Bill that has been duly passed and agreed by Parliament. Another important convention is that government ministers must have a seat in Parliament（and, in the case of the Prime Minister and Chancellor of the Exchequer, specifically in the House of Commons）in order to hold office. This is a vital aspect of what is known as the“Westminster system of parliamentary government”, providing a direct form of executive responsibility and accountability to the legislature.
The U.S.Constitution
Constitutional law in the U.S.is the study of the structures of government, individual rights, and governmental responsibilities laid out in the United States Constitution, in state constitutions, and in the many court decisions interpreting those documents.
The founders ratified the United States Constitution in 1787. The constitution was the result of a debate about the appropriate role of government in a free society. Some thought that the predecessor Articles ofConfederation didn't give the federal government enough power to do business. The U.S. constitution was ultimately a compromise between many competing interests and philosophies present in society at the time of the document's drafting.
The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built. By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, the Constitution has created a system of government that has allowed every area of civil, criminal, and administrative law to evolve with the needs of society. The federal Constitution became binding on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for ratification.
The federal Constitution comprises seven articles and 27 amendments. Articles I, II, and III set forth the basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten amendments to the U.S. Constitution, known as the Bill of Rights, enumerate certain individual liberties that must be protected against government infringement. The rest of the Constitution contains miscellaneous other provisions, many of which are intended to maintain a federalist system of government in which the federal Constitution is the supreme law of the land and the federal government shares sovereignty with the states.
Despite many amendments throughout the years, the constitution remains the primary document that governs the government of the United States. The constitution gives power to the federal government in three branches:the legislative branch that makes the law, the executive branch that carries out the law and makes treaties and the judicial branch that interprets the law. The constitution also defines the relationship between the states and the federal government. Finally, the constitution defines an individual's relationship to the federal government.
Major areas of the US Constitution and its interpretation
Due Process
Due process is the idea that the government can't take someone's liberty or property without a fair judicial procedure. A person accused of a crime has the right to have reasonable notice of the charges against them and an opportunity to be heard in the matter. They have the right to a fair judge or jury in their case. They have the right to cross examine witnesses and the opportunity to have an attorney. Courts must keep records of proceedings and publicly state the reasons for their decisions. One also has the right to a fair process in civil matters.
Freedom of Speech
The government can't unduly limit the right of the people to speak, assemble and practice religion. The government can make only limited time and place restrictions on speech. If they make restrictions, they must apply the restrictions uniformly to everyone. Constitutional lawyers continue to challenge limitations on free speech, and the courts continue to struggle with the balancing act of serving both legitimate public interests and the private.
Commerce Clause
A lot of the federal government's legislative authority comes from the constitution's commerce clause. The federal government can only regulate an industry if the industry impacts or has the potential to impact interstate commerce. The authors of the constitution wanted the federal government to regulate the relationship between states while leaving it to the states to draft the laws that they see fit.
The commerce clause is one of the most litigated parts of the constitution. Generally, the Supreme Court interprets the commerce clause in a broad, expansive way. In the Swift v. United States（U.S.1905）case, the court said that the government can regulate an activity or industry as long as the regulation impacts something that's going to end up in the stream of commerce. They go even further in the Wickard v. Filburn（U.S.1942）case to say that the federal legislature can step in if an activity might have even an indirect impact on the economy.
The Bill ofRights
The Bill ofRights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public. Originally the amendments applied only to the federal government, however, most were subsequently applied to the government of each state by way of the Fourteenth Amendment, through a process known as incorporation.
The first amendment protects religious freedom by prohibiting the establishment of an official or exclusive church or sect. Free speech and free press are protected, although they can be limited for reasons of defamation, obscenity, and certain forms of state censorship, especially during wartime.
The second amendment protects citizen's right to bear arms.
The third amendment is virtually obsolete provision, which was in response to anger over the British military practice of quartering soldiers in colonists'homes.
The fourth amendment prevents the government from unreasonable search and seizure of the property of US citizens. It requires the government to have a warrant that was issued by a judge and based on probable cause.
The fifth amendment is the due process clause, which is famous for people saying“I'll take the Fifth”. This gives people the right to choose not to testify in court if they feel their own testimony will incriminate themselves. In addition this amendment protects citizens from being subject to criminal prosecution and punishment without due process. It also prevents people from being tried for the same crime twice. The amendment also establishes the power of eminent domain, which means that private property cannot be seized for public use without just compensation.
The sixth amendment provides defendants in criminal cases are entitled to public trials that follow relatively soon after initiation of the charges. Witnesses must be brought to the trial to testify before the defendant, judge, and jury. Defendants are also entitled to compel witnesses on their behalf to appear and testify.
The seventh amendment provides the right to jury trial in civil cases.
The eighth amendment stipulates that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Neither bail nor 44 punishment for a crime are to be unreasonably severe. The“cruel and unusual punishments”clause has been the basis for challenges to the death penalty.
The ninth amendment explains the enumerated rights. It states that the list of rights described in the Constitution is not exhaustive, and that the people still have all the rights that are not listed.
The tenth amendment enunciates the federal government is the recipient of constitutionally delegated powers. What is not delegated remains in the states or in the people.
Legal Terms
written constitution 成文宪法
enact v．制定（法律）
amendment n．修订；修正案
unwritten constitution 不成文宪法
convention n．公约；协定
promulgate n．颁布（法律）
legislator n．立法者
discretion n．自由裁量权
codify v．编撰法典
act ofparliament 议会法案
statute n．法规；成文法
overrule v．否决；驳回
invalid adj．无效的
repeal v．撤销；废除；否定
judicial adj．司法的；法官的；法庭的
ratify v．批准
cross examine 交叉询问
fair process 公平程序
legitimate adj．合法的；正当的
commerce clause 贸易条款
litigate v．提起诉讼
defamation n．诽谤
censorship n．审查制度
unreasonable search and seizure 无理的搜查和扣押
probable cause 合理的根据
testimony n．证言；证词
incriminate v．使……有罪
criminal prosecution 刑事起诉
public trial 公开审判
excessive bail 过量的罚金
cruel and unusual punishment 残酷及非同寻常的刑罚
enumerated rights 列举的权利
delegated power 授予的权力
Notes
1. This text is adapted from the following sources：
http://legalcareerpath.com/what-is-constitutional-law/
https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution
https://www.quora.com/What-is-the-difference-between-the-written-and
unwritten-constitution
http://www.history.com/topics/constitution；
https://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom
https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution
http://legalcareerpath.com/what-is-constitutional-law/
https://www.americanhistoryusa.com/topic/united-states-bill-of-rights/
2. Magna Carta 1215
Magna Carta（also“Great Charter”）, is a charter agreed to by King John of England on 15 June 1215. First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.
3. Petition ofRights 1628
Petition ofRight 1628 was sent by the English Parliament to King Charles I complaining of a series of breaches of law. The petition sought recognition of four principles:no taxation without the consent of Parliament, no imprisonment without cause, no quartering of soldiers on subjects, and no martial law in peacetime.
4. Bill ofRights 1689
The Bill of Rights, also known as the English Bill of Rights, is an Act of the Parliament of England declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown. The Bill ofRights lays down limits on the powers of the monarch and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment and reestablished the right of Protestants to have arms for their defence within the rule of law.
5. Habeas Corpus Act 1679
Habeas Corpus is an act passed by the British Parliament in 1679, still in force today, which ensures that no one can be imprisoned unlawfully. Literally translated,‘habeas corpus' means‘you may have the body'（if legal procedures are satisfied）. While the Act does not judge whether the detained prisoner is guilty or innocent, it simply decides whether an arrest was valid in the concerned circumstances or not.
6. Act ofSettlement 1701
The Act ofSettlement was introduced in 1701 to for the further limitation of the Crown and better securing the Rights and Liberties of the Subject. It outlines the rules of royal succession and the powers of the Crown and decrees that only the Protestant heirs of Princess Sophia, grand-daughter of King James I, can succeed to the English throne. The act stipulates that the Monarch MUST be an Anglican and no retrenchment to Britain being a Catholic state.
7. Reforms Act of1 832,1 867,1 884
The Reform Bills were a series of proposals to reform voting in the British parliament. These include the Reform Acts of 1832,1867, and 1884. The bills reformed voting by increasing the electorate for the House of Commons and removing certain inequalities in representation. The Bill of 1832 disfranchised many boroughs which enjoyed undue representation and increased that of the large towns, at the same time extending the franchise, and was put through by the Whigs. The Bill of 1867 was passed by the Conservatives under the urging of the Liberals, while that of 1882 was introduced by the Liberals and passed in 1884. These latter two bills provided for a more democratic representation.
8. Parliamentary Act of1911
The Parliament Act 1911 is an Act of the Parliament of the United Kingdom. It is constitutionally important and partly governs the relationship between the House of Commons and the House of Lords, which make up the two Houses of Parliament.
9. Crown proceedings Act,1947
The Crown Proceedings Act 1947 is an Act of the Parliament of the United Kingdom that allowed, for the first time, civil actions against the Crown to be brought in the same way as against any other party. The Act also reasserted the common law doctrine of Crown privilege but by making it, for the first time, justiciable paved the way for the development of the modern law of public interest immunity.
10. House of Lords &House of Commons
The Parliament of the United Kingdom, which is the supreme legislative body of the United Kingdom, the Crown dependencies and overseas territories. It is bicameral, consisting of the House of Lords（the upper house）and the House of Commons（the lower house）.
1 1. Articles ofConfederation
Articles of Confederation, was the governing constitution of the alliance of thirteen independent and sovereign states styled“United States of America. ”The Article's ratification（proposed in 1777）was completed in 1781, legally uniting the states by compact into the“United States of America”as a union with a confederation government. Under the Articles（and the succeeding Constitution）the states retained sovereignty over all governmental functions not specifically deputed to the confederation.
12. Right to speech and expression
In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws.
Exercises